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Saturday, June 18, 2011

Understanding Qisas and Diyat Laws of Pakistan

When all the heirs of those murdered by Davis pardoned him for badl-i-sulh , the religious right cried foul. Technically there was nothing wrong procedurally and legally with the way Davis’ alleged crime was pardoned under law. The religious right claims that (i) that the heirs of the two victims were pressured into accepting badl-i-sulh , (ii) that Davis should have been convicted for fasad fil arz and (iii) the judge’s decision to impose a fine of Rs.20,000 and time served under Section 13 of the Arms Ordinance of 1965 was far too lenient under the circumstances.

For the first contention, no heir of the deceased has come forward to declare that they were pressured into accepting the settlement. It is now public knowledge that the heirs of Faheem’s widow, who committed suicide, also accepted badl-i-sulh.

This law dates back to General Zia’s Qisas and Diyat Ordinance of 1980, as part of a cosmetic process of Islamisation that the said dictator carried out in Pakistan to legitimise his illegal rule on the touchstone of Islam. Zia himself had delayed the enforcement of these laws to ensure that Zulfikar Ali Bhutto would not benefit from them.

It is the common Islamic position, closely held by many scholars of Islam, however, that modern conception of citizenship makes the state an heir as well but this finer point of Islamic law has been bypassed by this ordinance. The most sinister use of this ordinance has been in honour killing cases where a brother or other such male member kills a female relative and is then let off the heirs of his victim. This misuse of Islamic provisions has never offended the sensibilities of our ulema and scholars. They have also never lent any thought to the fact that the law protects, inevitably, the rich who can pay and lets go the poor who cannot. If the state was to assume its rightful responsibility as the heir or at least widen the scope of tazeer – a position that cannot be said to violate Islamic law- to still imprison murderers guilty of qatl-e-amd .

Was Davis guilty of fasad-fil-arz? To prove this, the past record would have to come into play and the prosecution would have to prove that Davis constituted a grave threat to public safety. The Judge, Yousaf Ojla, holds that the f asad fil arz was not in play and there was no previous record of Davis per se that would prove that he would constitute a grave threat to public safety (especially after he left the country). The third contention no doubt holds more water as the maximum punishment of seven years is envisaged under the aforesaid Arms Ordinance. However the provision provides for imprisonment or fine or both. Given that Davis was both imprisoned and fined, this too cannot be argued as being against the letter of the law, even if it does fly in the face of general custom and practice.

Needless to say, the operation of this law- though perfectly legal- has brought Pakistan and Islam into disrepute. In American media, it has been described as “effectively a bribe”. The honourable thing to do for Pakistan is to accept that the verdict in Raymond Davis’ case was keeping with the letter of the law (as it exists on the statute books) and to move decisively to revisit the law to bring it in conformity with rational spirit of Islam. Unfortunately, the way Islamic law has been used in Pakistan seems to indicate a propensity to sacrifice the substance for the form.

The right wing agitators of Pakistan need to accept that they failed in their duty when they refused to stand up for the countless victims of honour killings who cry out from their graves. They should forget about deriving political mileage from this unfortunate incident and instead work with other forces in Pakistan to bring about changes that would ensure that murderers do not get to go free after paying the heirs of their victim. Law must not treat murder as a civil wrong or tort. It must treat murder as a crime against the state.

To further understand, following are the details of the Qisas and Diyat Laws as per Pakistan Penal Code.

Section 310 of the Pakistan Penal Code (PPC) gives wali (heir) of a victim of qatl-e-amad to compound qisas, a right to demand “death” for such murderer. This Section reads as under:

“(1) In the case of qatl-e-amad, an adult sane wali may, at any time on accepting badal-i-sulh compound his right of qisas: Provided that only giving a female in marriage shall not be a valid badal-e-sulhl

(2) Where a wali is a minor or an insane, the wali of such minor or an insane wali may compound the right of qisas on behalf of such minor or insane wali:

(3) Provided that the value of badal-i-sulh shall not be less than the value of diyat.

(4) Where the government is the wali it may compound the right of qisas:

(5) Provided that the value of badal-i-sulh shall not be less than the value of diyat.

Where the badal-i-sulh is not determined or is a property or a right of the value which cannot be determined in terms of money under shariah the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat.

Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.

In this section badal-i-sulh means the mutually agreed compensation according to shariah to be paid or given by the offender to wali in cash or kind or in the form of movable or immovable property.”

The value of diyat is given under Section 323 of the PPC, which reads “the Court shall, subject to the injunctions of Islam as laid down by the Holy Quran and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams (30,630 grams) of silver.”